Long before the pandemic and as far back as July 1997, the European Commission adopted recommendations on the labour market and the social dimension of the information society – which included commitments to promote teleworking in Europe, writes Beauchamps Employment Partner Sandra Masterson Power.
Back to the future
In 1998, Ireland established the National Advisory Council on Teleworking. In July 2002, the European Framework Agreement on Telework established a general framework at European level for teleworkers’ working conditions and prompted member states to implement the agreement over the following years to 2005. The issues highlighted back then remain relevant today. They were:
- the voluntary nature of teleworking;
- employment conditions;
- data protection;
- health and safety;
- organisation of working time;
- training of teleworkers; and
- collective rights of teleworkers.
The framework agreement was innovative and its intention was to define a general framework for the use of telework in such a way as to meet the needs of employers and workers.
Technology was becoming accessible and sophisticated enough that knowledge-based workers could now conceivably carry out their work outside the traditional office setting.
Commentators in 2000 discussed the challenges of getting traditionalists to change their mindset. As we moved into the 2010s, and with disruptive technologies rapidly transforming the world of work and potentially increasing the proportion of knowledge-based roles in Ireland, flexible options such as remote work became not just a viable option but, for many, an expectation.
Both the 2019 Remote Work in Ireland report and the National Remote Work Strategy adopted the definition of ‘telework’, as described in the 2002 European Framework Agreement: “A form of organising and/or performing work, using information technology, in the context of an employment contract/relationship, where work, which could also be performed at the employer’s premises, is carried out away from those premises on a regular basis.”
Remote working 2022
The Irish Government had already recognised and highlighted the potential for remote working in the 2019 Future Jobs Ireland Report, and so when the pandemic struck in early 2020, much of the groundwork had been done. The Remote Working Strategy was published in January 2021, and a code of practice for employers and employees on the right to disconnect was introduced in April 2021.
The Right to Request Remote Work Bill 2022 will, when enacted, provide a framework around which requesting, approving, or refusing a request to work remotely can be based. It will provide legal clarity to employers on their obligations for dealing with such requests.
Trust has been identified as an aspect of workplace culture that is particularly important in enabling remote work and is seen as an enabler of and a barrier to remote working. Given that there is an implied duty of trust and confidence in every employment contract, a lack of trust has the potential to damage the employment relationship and ultimately cause a breakdown in that relationship which can lead to conflict, which leads to retention issues and resignations or litigation. A negative workplace culture and an absence of trust are, therefore, risk issues and need to be borne in mind.
Right to disconnect
The right to disconnect refers to employees’ right to switch off from work outside normal working hours and not to respond to incoming communications from work and has three main elements:
- The right of an employee to not routinely perform work outside normal working hours.
- The right to not be penalised for refusing to attend to work matters outside of normal working hours.
- The duty to respect another person’s right to disconnect (e.g., by not routinely emailing or calling outside normal working hours).
“The creation of a culture in which employees feel they can disconnect from work and work-related devices necessitates a joint approach by both employers and employees. While placing the onus of management of working time on the employer is appropriate, individual responsibility on the part of employees is also required.”
The creation of a culture in which employees feel they can disconnect from work and work-related devices necessitates a joint approach by both employers and employees. While placing the onus of management of working time on the employer is appropriate, individual responsibility on the part of employees is also required.
The Code of Practice helpfully sets out employer obligations, but the employee obligations warrant judicious consideration by employers. If remote working is to work to maximum effect, employers will have to reflect on culture and management style and will need to empower employees to take responsibility, employers will need to move away from command and control/traditional management styles.
The Work-life Balance Directive came into force in EU member states in August 2019. The Directive includes the right to request flexible working arrangements for carers and working parents of children up to 8 years old. Member states have three years to comply with the Directive and transposition in Ireland is led by the Department of Children, Equality, Disability, Integration and Youth. Whilst the transposition deadline has passed, the Work-life Balance and Miscellaneous Provisions Bill 2022 is expected to be enacted by the end of 2022. Its stated aim is to increase the participation of women in the labour market and the take up of family-related leave and flexible working arrangements. It will also have provisions for domestic violence leave.
It is fair to say that in 2022, there are still those that hold a more traditional view that office-based working is the only way. To be fair, the pandemic has shown, that for many roles, it is the only way. Are there cultural issues around trust that underpin some of that thinking? Organisations have to be careful not to create a two-tier system and should challenge themselves objectively on the reasons for not making remote working available to all cohorts of employees.
The Right to Request Remote Working Bill and the Work-Life Balance Bill are priority bills on the Autumn Legislative Programme. By the end of 2022, the future anticipated back in 1997 will have arrived.
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